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toilet facilities had been constructed (1924) 209 App. Div. 827, 204 N. Y. in the rear of the restaurant, which Supp. 893, supra, III. were easily accessible through the From the report of Harmer v. Jumkitchen of the leased premises. The bil (Nigeria) Tin Areas, as given in court said: “Rights and easements [1921] 1 Ch. (Eng.) 200—C. A., it may and do pass to lessees by im- appears that in the lower court one plication; 'but where the express who had leased a small portion of a words of the grant are not sufficient, large tract of land was held to be enthe implication which supplies those titled to an injunction to restrain one words flows either from a reasonable who subsequently leased the remainnecessity, or, considering all the cir- der of the tract, and whose rights cumstances, from the manifest inten- were conceded to be the same as those tion of the parties"-and took the of the landlord, from constructing a view that the use of the door, passage- railroad thereon by which his access way, and toilet facilities in connec- to the leased premises was cut off. tion with the tenant's business was

V. Miscellaneous. merely a convenience, and was not necessary to the beneficial use of the

(Supplementing annotation in 12

A.L.R. 177.) property. And in Bloomington Lodge, B. P. O.

In Harmer v. Jumbil (Nigeria) Tin E. v. Roland (1920) 217 Ill. App. 435,

Areas [1921] 1 Ch. (Eng.) 200_C. the court denied the contention of the

A., it was held that one who had tenant of an upper floor of a building,

leased a portion of a large tract of the rear windows of which looked out

land for an explosive magazine, as the over a court or unoccupied portion of

landlord knew,-a purpose for which the lot on which the building stood,

he was obliged by law to obtain a that he had an easement of access by

license, which was subject to forfeiway of his rear windows, a fire escape,

ture if buildings were erected within and the open court for the removal

a prescribed distance from the mag. of garbage from the leased premises

azine,—was entitled to an injunction to an alley at the rear, so as to be

to prevent one who subsequently entitled to enjoin his landlord from

leased the remainder of the tract from erecting an addition to the building erecting buildings thereon which which would occupy the court and

would render his license subject to necessitate the removal of the fire es- forfeiture. The court took the view cape to another location, where there that there was an implied obligation was nothing to show that the fire es- on the part of the landlord not to cape was ever intended as a means do anything that would violate the of ingress and egress to and from the conditions under which the license leased premises, or that it was rea

was held by the tenant, as any such sonably necessary or highly

act would be in derogation of his venient, as distinguished from a mere grant, and that, since the rights of convenience.

the second lessee could be no greater And see Holtz Amusement Co. v. than those of the lessor, the first Schorr (1924) 122 Misc. 712, 204 N. Y. lessee was entitled to the same relief Supp. 733, supra, III.

against the second lessee as he would But compare Bauer v. Schwartz have been entitled to against the (1924) 122 Misc. 630, 203 N. Y. Supp. landlord, had the buildings been 507, affirmed without opinion in erected by him.

M. A. L.

con

(- Iowa, —, 202 N. W. 256.)

B. E. HALL et al., Exrs., etc., of E. A. Hall, Deceased,

v.
MERCHANTS' STATE BANK, Appt.

Iowa Supreme Court February 17, 1925.

(- Iowa, 202 N. W. 256.) Trover, $ 21 — taking bill of sale as conversion. 1. One holding a chattel mortgage upon property of a tenant, who takes

a a bill of sale of it to avoid the expense of foreclosure, without taking possession of the property or exercising dominion over it, is not guilty of conversion with respect to the landlord entitled to a prior lien upon the property.

[See note on this question beginning on page 1096.] Appeal, § 989 costs failure to of a successful appellant will be taxed prepare index

liability of appel. against him where he fails to prepare lant.

an index to it as required by the rules 2. The cost of printing the abstract of court.

APPEAL by defendant from a judgment of the District Court for Woodbury County (Hamilton, J.) in favor of plaintiffs in an action brought to recover the value of certain property alleged to have been appropriated and converted by defendant to its own use. Reversed.

Statement by Faville, Ch. J.: Nordby v. Clough, 79 Iowa, 428, 44

Action in conversion. The court N. W. 697; Harlan v. Ash, 84 Iowa, submitted the case to the jury,

42, 50 N. W. 41; Jones v. Stevens, which returned a verdict in favor of

Miss. -, 12 So. 446; Re Reis, 3 Woods,

18, Fed. Cas. No. 11,684; Kean v. the plaintiff, and the defendant ap

Rogers, — Iowa, 118 N. W. 515. peals.

Messrs. Henderson, Fribourg, & Messrs. E. C. Logan and Jepson, Hatfield for appellees. Struble, Anderson, & Sifford, for ap

Faville, Ch. J., delivered the opin. pellant:

ion of the court: The mere receipt by one of the proceeds of the wrongful sale of mort

Appellees entered into a written gaged chattels, or chattels upon which

lease with one Conklin, for certain a landlord has a lien for his rent, is

lands in Woodbury county, for a not a conversion, which consists of term of three years, commencing any wrongful act of dominion assert- March 1, 1918. By the terms of the ed over the chattel in denial of the lease the tenant was to pay a yearly owner's right thereto, or inconsistent cash rental for said premises. Aptherewith. Iowa Farm Credits Co. v. People's pellant held chattel mortgages upon

the personal property of the tenant. Sav. Bank, 196 Iowa, 967, 192 N. W. 139; Casady v. German Sav. Bank, 159

In December, 1920, the tenant and Iowa, 149, 140 N. W. 401; Commercial his wife executed to appellant a bill Sav. Bank v. Brooklyn Lumber & of sale upon all of the property Grain Co. 178 Iowa, 1206, 160 N. W. owned and held by the tenant upon 817; First Nat. Bank v. Security the leased premises. Trust & Sav. Bank, 191 Iowa, 842, 181 Subsequently, a son of the tenant N. W. 402.

shipped certain hogs from the leased A lien upon personal property does premises to Sioux City. It appears not ordinarily attach to the proceeds

that the hogs were shipped to the arising from its sale or conversion. Hartwig v. Iles, 131 Iowa, 501, 109

firm of Clay Robinson Company, and N. W. 18; Waters v. Cass County under the instructions of the son a Bank, 65 Iowa, 234, 21 N. W. 582; remittance of the proceeds was

made to appellant, where the funds Many definitions of conversion were credited to the account of the are to be found in the books. See tenant, who subsequently checked 2 Words & Phrases, p. 1562; 1 out a portion of the same for his Words & Phrases, 2d series, p. 1030. own use, and gave to appellant a In Brown v. Dubuque Altar Mfg. check for a portion of said funds, Co. 163 Iowa, 343, 144 N. W. 613, which was applied upon the indebt- we quoted from 2 Cooley on Torts, edness of the tenant to appellant. A 3d ed. p. 859, as follows: "Any dissubstantial portion of the rental due tinct act of dominion, wrongfully to appellees being unpaid, this action exerted over one's property in deis brought against appellant in con- nial of his right or inconsistent with version to recover the value of the it, is a conversion. The action of hogs so sold.

trover being founded on a conjoint The proposition before us resolves right of property and possession, itself into the one question as to any act of the defendant which negwhether or not the taking of the bill atives or is inconsistent with such of sale by appellant from the tenant right amounts in law to a converconstituted a conversion of the prop- sion. It is not necessary to a conerty, ipso facto.

version that there should be a manThe appellant had chattel mort- ual taking of the thing in action by gages on the personal property of the defendant; it is not necessary the tenant. No question is urged but that it should be shown that he has that such chattel mortgages were applied it to his own use. Does he subject to appellees' landlord's lien exercise a dominion over it in exon the property. Appellant took the clusion or defiance of the plaintiff's bill of sale before the lease expired. right? If he does, that, in law, is The bill of sale contained the follow- a conversion, be it for his own or ing recital: “It being understood for another person's use." and agreed by all parties hereto that See also Cutter V. Fanning, 2 this bill of sale is given by the grant- Iowa, 580; Reizenstein v. Marors for the purpose and with the in- quardt, 75 Iowa, 294, 1 L.R.A. 318, tention of turning over to the mort- 9 Am. St. Rep. 477, 39 N. W. 506; gagee all of said described property Iowa Farm Credits Co. v. People's in order to save the expense of fore- Sav. Bank, 196 Iowa, 967, 192 N. W. closure of said chattel mortgages

139. and other expense."

The precise question here presentAppellees thus state the ques- ed does not appear to have heretotion: “It is our contention that the fore been before this court. In Dataking of this bill of sale by the ap- vis v. Buffum, 51 Me, 160, the depellant in itself constituted a con

fendant leased a sawmill to parties version, and having converted the who placed machinery therein. The property upon which the appellees

lessees assigned the lease and sold had a lien, which was prior to any

the machinery to the plaintiffs, who lien of appellant derived from the

took possession. During the occupachattel mortgages, appellant is liable

tion the defendant deeded the mil! to appellees for the reasonable val

and all appurtenances to third par

ties. ue of all the property converted up

The plaintiffs subsequently

left the premises, and sued the deon which appellees' lien is superior.

fendant for conversion of the maThe only question is whether

chinery. The court said: or not it was converted by appel

"This being an action of trover, lant, by the acceptance of the bill

the only question presented is of sale from the tenant."

whether the plaintiffs have shown Did the taking of such bill of sale, an act of conversion on the part of without more, constitute a conver- the defendant. The plaintiffs claim sion of the property, for which ap- to recover on the ground that the pellant is liable to appellees?

defendant's deed to Dane and Per

(- Iowa, -, 20% N. W. 256.) kins was per se a conversion-be- purchaser's barn. The court said: fore the expiration of his lease. “But although the mortgagor was

“But this is not so. When that clearly guilty of a conversion by the deed was executed the plaintiffs sale and removal of the hay, it does were in the undisturbed enjoyment not necessarily follow that the purof their property and so remained chaser would be likewise guilty. during the whole duration of the Taking all inferences as strongly as lease. The deed of the defendant possible against the defendant, it conveyed nothing he did not own; appears that, besides the purchase certainly not to grantees with notice and payment, the only other acts for of all the facts. The giving a bill which the purchaser could in any of personal property in the posses- way be responsible was the delivery sion of a third person, who is the of the hay into his barn by the mortowner of the same, without any oth- gagor. It may be inferable that this er interference therewith or delivery delivery was made in pursuance of thereof, is not, as against such own- the contract of sale, to which the deer, a conversion by either the person fendant was a party. But the degiving or receiving such bill of sale. fendant had not sold, used, or In Fuller v. Tabor, 39 Me. 519, the abused the hay. He had resisted no plaintiff brought an action of trover claim of the plaintiff. He had exfor a building which had been placed ercised no actual dominion over the on the land of another by his prece- hay as against the plaintiff, or in dent consent, or subsequent assent. denial of his right. The plaintiff The defendant, when a demand was was not in possession; therefore, his made, said he had bought it and paid possession was not interrupted. for it. The court instructed the

We hold that one who purjury that taking a quitclaim deed of chases in good faith, without actual the land and building, and putting notice, mortgaged chattels of the it on record, would not of itself con- mortgagor in possession, if he has stitute a conversion on the part of merely received the goods into his the individual so receiving the deed. own possession, and has exercised no Neither can the mere giving a deed other dominion or control over them of land leased, the lessee continuing to the exclusion of the mortgagee or in quiet possession, be deemed a con- in defiance of his rights, is not liable version of fixtures which the tenant for a conversion, without demand or

a has the right to remove during his refusal.” term. The lease was as valid after In Thorp v. Robbins, 68 Vt. 53, as before the deed. The rights of 33 Atl. 896, the court said: "How the lessee remained the same. The can it be said that the defendant deed was no more a conversion of has converted the property, when the tenant's fixtures than it was a the plaintiff has had the exclusive breach of the covenants of the lease. and uninterrupted possession, as The mere taking a mortgage of per- against the defendant and the pursonal property from one having no chaser, and the defendant and purtitle, and recording the same, with- chaser have exercised no acts of out taking possession of the mort- ownership or control over it? The gaged property or interfering with case is not like cases cited and rethe same, constitutes no conversion lied upon by the plaintiff, where it for which trover will lie."

has been held that a sale is a conIn Dean v. Cushman, 95 Me. 454, version. In those cases, the contract 55 L.R.A. 959, 85 Am. St. Rep. 425, of sale was consummated by a de50 Atl. 85, a mortgagor of chattels livery of the property. A conversold the same to a good-faith pur- sion, in the sense of the law of trochaser, without notice, who exer- ver, is an unauthorized dealing with cised no dominion or control over the goods of another by one in posthem. In that case the chattel was session, whereby the nature or qualhay, which had been placed in the ity of the goods is essentially al

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tered, or by which one having the least, to be shown that he has asright of possession is deprived of all sumed dominion over the property, substantial use of the goods, perma

after the title of the lawful owner nently or temporarily. 15 Am. L. has been made known to him, which Rev. 363. Conversion is any unau- is usually evidenced by showing a thorized act which deprives another demand of it, by the owner, and a of his property, either permanently refusal to deliver it up.” or for an indefinite time. Hiort v. The foregoing cases illustrate the Bott, L. R. 9 Exch. 86. Conversion tendency of the holdings of the

, is the turning or applying the prop courts. We are of the opinion that erty of another to one's own use. the mere taking of the bill of sale Bouvier's Law Dict. In the sense of

the property,

Trover-taking of the law of trover, a conversion without the taking bill of sale as consists either in the appropriation of possession, or the

conversion. of the property to the party's own exercise of dominion over the same, use, benefit, and enjoyment, or in or the doing of any act thereunder its destruction, or in exercising do- that interfered with the full enforceminion over it in exclusion or de- ment and exercise of appellees' lien, fiance of the plaintiff's right, or in did not constitute, in law, a converwithholding the possession from the sion of the property, and we so hold. plaintiff under a claim of title. Kel- It follows that the trial court logg, J., in Tinker v. Morrill, 39 Vt. erred in submitting the question of 480, 94 Am. Dec. 345.

The mere the conversion of the hogs to the assertion of ownership of propertyjury, on the theory that the execuwithout in any way interfering with tion of the bill of sale constituted a it, or the owner's right to control it, conversion. is no evidence of a conversion. .. III. In view of our holding on the The findings do not show any inter- foregoing question, other matters

, ference with the property by the urged by appellant are immaterial defendant or the purchaser that in to a determination of the appeal, any way affected the rights of the and a new trial must be had. plaintiff; therefore, no conversion is Appellant's abstract is without shown, and the action of trover can- any index, as required by our rules. not be maintained."

The work of the court has been seriIn Parker V. Middlebrook, 24 ously handicapped Conn. 207, the court said: “The ac- by the additional Appeal-costs

failure to pretion was trover, the gravamen of labor and inconven- pare indes-llawhich is the conversion of the prop- ience put upon it,

bility of appelerty for which it is brought. But a by this disregard of conversion is a wrongful or tortious an important rule. The cost of act; and a mere purchase from a printing appellant's abstract will be party in possession, who is the ap- taxed to the appellant. parent owner, made in good faith, The judgment of the District and in the regular course of busi- Court as to the amount found by the ness, is not a conversion against the jury, in answer to a special interlawful owner. Such a purchaser rogatory, to be the value of the hogs, cannot be in a worse condition than

is reversed. the finder of a chattel which has Evans, Arthur, and Albert, JJ., been casually lost; and it ought, at concur.

lant.

ANNOTATION.

May trover be predicated upon the mere act of purchasing property from

someone other than the true owner, without taking actual possession. It is intended to limit this annota- the liability of the purchaser of proption to cases involving the question of erty in trover, where he purchases

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